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More on Red Hat Lawsuit
Monday, August 04 2003 @ 05:31 PM EDT

I checked Pacer for DE, and the complaint isn't up yet. I'll keep checking. Meanwhile, more detailshere on ComputerWorld: We just want to make sure we protect the franchise ... and get the facts so we can fix anything if there is anything to fix [in the Linux code]. And more here on InformationWeek:
"We're seeking a resolution ... to all the rhetoric as fast as possible," said Matthew Szulik, Red Hat's chief executive officer."
Their other claims are these, according to ComputerWorld again:
"We also brought a claim under the Lanham Act for false advertising and unfair competition under federal law that the statements that SCO was making are deceptive and untrue," he said.

Sims said Red Hat also filed a complaint under the state of Delaware's deceptive trade practices act.

"We also filed three other claims [under state law], one for unfair competition, one for trade libel, meaning they disparaged our trademark by making these untrue and unfair statements, and one saying they intentionally and wrongfully interfered with our business relationships," Sims said.
You can read the Deceptive Trade Practices Act here. Sims is Bryan Sims, Red Hat's VP of business affairs and general counsel.

You can read about trade libel here and here. The Lanham Act is here. Check the Legal Links [Update: Legal Research] page for more.

Here is the relevant part of the act, in case it's hard to reach:
§ 2532. Deceptive trade practices.
(a) A person engages in a deceptive trade practice when, in the course of a business, vocation, or occupation, that person:
(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;

(4) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(5) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have;

(6) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;

(7) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(8) Disparages the goods, services, or business of another by false or misleading representation of fact;

(9) Advertises goods or services with intent not to sell them as advertised;

(10) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

(11) Makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of, price reductions; or

(12) Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.

(b) In order to prevail in an action under this chapter, a complainant need not prove competition between the parties or actual confusion or misunderstanding.

(c) This section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this State. (6 Del. C. 1953, § 2532; 55 Del. Laws, c. 36; 70 Del. Laws, c. 186, § 1.)

§ 2533. Remedies.
(a) A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive, is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.

(b) The court in exceptional cases may award reasonable attorneys' fees to the prevailing party. Costs or attorneys' fees may be assessed against a defendant only if the court finds that defendant has wilfully engaged in a deceptive trade practice.

(c) The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this State. If damages are awarded to the aggrieved party under the common law or other statutes of this State, such damages awarded shall be treble the amount of the actual damages proved.

(d) The Attorney General shall have standing to seek, on behalf of the State, any remedy enumerated in this section for any violation of § 2532 of this title that is likely to harm any person, including but not limited to individual retail purchasers and consumers of goods, services or merchandise.

(e) If a court of competent jurisdiction finds that any person has willfully violated this subchapter, upon petition to the court by the Attorney General in the original complaint or at any time following the court's finding of a willful violation, the person shall forfeit and pay to the State a civil penalty of not more than $10,000 for each violation. For purposes of this subchapter, a willful violation occurs when the person committing the violation knew or should have known that the conduct was of the nature prohibited by this subchapter. (6 Del. C. 1953, § 2533; 55 Del. Laws, c. 36; 57 Del. Laws, c. 499; 69 Del. Laws, c. 203, § 22; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 470, § 16.)

Emphasis added by me. Other parts may turn out to be relevant, but I marked only the parts that match what has been reported so far.

  


More on Red Hat Lawsuit | 7 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 03:46 PM EDT
Ya know PJ, following this blog over the next few weeks is going to be more exciting than-____ fill in the blank. I can't wait to get here and see what you've uncovered or clarified! Your wonderful!

BTW, when do you actually work? ;-)

mike


Mike

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 04:09 PM EDT
Anything that could be construed as a thin edge of the wedge for 'piercing the
veil' to come?
Sanjeev

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 05:20 PM EDT
You have an incorrect email link. Those who wish to email Red Hat regarding the new fund should email opensourcenow@redhat.com, not opensource@redhat.com.
Paul

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 06:04 PM EDT
IBM is not a Linux distributor. It had become obvious that The IBM suit might be settled without ever resolving the non-contract side issues surrounding Linux.

I filed a two complaints with the FTC over SCO's proposed binary runtime-only Unixware licensing for Linux end users. At the time I felt it was bizarre that RedHat was "vigorously defending" it's trademark against fair use by Linux fan sites, in product reviews, and in meta tags that the casual web surfer never sees. Despite those actions, they did nothing for months about the overt product disparagement The SCO Group was engaged in. If the trademark owners like Linus Torvalds, RedHat, and etc. are silent, there is very little ordinary users can do under the Lanham Act or under most state laws here in the US. It's good to see someone - anyone - who owns a Linux trademark stand up and finally do something.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 06:45 PM EDT
Thanks, Paul, I'll fix. As you can imagine, I'm working very, very rapidly. Pls. let me know any other glitches, everyone.

Harlan, pls. keep me posted on your complaints with FTC, will you?


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 09:25 PM EDT
Certainly!
Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 10:16 PM EDT
Mike,

I was working so fast, I didn't see your comment before. Sorry. And thank you. Actually, you have no idea how hard it is to keep up with work and Groklaw, now that Groklaw got popular and this story took off... I haven't been this tired in a long, long time.


pj

[ Reply to This | # ]

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